At first glance, it might seem that Bates stamps or Bates numbers that are used to sequentially number Court documents are quaint and a relic of a bygone era. Paper will soon no longer be the dominant form of filings. And, therefore, neither would stamping pages with a hand-held Bates stamp nor stamping PDF or TIF files with special Bates numbering applications be done anymore. But, as we’ll see, Bates numbers are more resilient than you might think.
The late 19th century inventor Edwin G. Bates first patented the compact, hand-held Bates Stamper which allowed a four-digit number sequence from 0000 to 9999 and automatically incremented the count each time the stamper’s handle was depressed. Courts and law firms quickly adopted this system because it made referencing documents and their specific pages, especially transcripts, simple, by enabling all parties to refer to the evidence under discussion by simply using the document, page and line number – something that was highly cumbersome before and without which, would remain so even today.
The question today, with almost all evidence in electronic and native format, is how do you Bates stamp native and traditional productions and get a handle on all of that?
Let’s take a look.
What to do about Bates numbering native files?
It seems to throw a wrench into responding to disclosure requests when attorneys are suddenly faced with something they hadn’t thought was easy enough: applying Bates numbers to native files. Attorneys are so used to Bates stamps on each page of a document, it’s novel for a production to omit page-level Bates numbers.
But there’s a good reason why.
Today, evidence is almost entirely electronic in a format native to the authoring application i.e. a DOCX file from Word, XLSX from Excel, native EML or MSG files, and so on. And therefore, it’s now commonplace to request and have to produce original native files to opposing counsel – which actually saves the cost of converting to image or vector format first (i.e. TIF or PDF). Recipients having received metadata associated with those files (as it’s within the files themselves) benefit too. For example, an image of an Excel spreadsheet conveys far less insight into how its calculations are derived when you aren’t able to see its underlying formulas.
So what to do? The answer is to use unitization with native files. In this scenario, a file-level Bates like number sequentially numbers each file, but, and here’s the key, unllike a Bates number, the number is only used as the file name (or filename prefix) and no Bates numbers are stamped on the file’s contents. Since productions are usually accompanied by a load file with metadata that also includes the original file name and path of each file being produced, the production set can be loaded into any review tool. In MasterFile, that’s a very simple process; you can do it yourself in a couple of clicks using its Express Load wizard.
What do we really need to Bates number?
Native production splits the process of Bates numbering. The producing party applies the file-level Bates like number but the ability to paginate and Bates number each page belongs to the party who prints the evidence for use in a proceeding. This is the key concept when managing native disclosures. Everything thereafter proceeds as traditionally expected: all parties can reference the printout via the Bates number as they have always done.
Why does Bates numbering work, and work well?
It works because as only a tiny fraction of items produced in discovery ever get used in court, you only need Bates stamp the set of documents that leaves your office for use in a proceeding. Documents that arrive at your office need not be stamped (they would be managed in your review tool; naturally we suggest MasterFile). And, although some law firms do Bates stamp everything that’s incoming with a unique document ID, let’s be clear: that’s not Bates stamping but simply a method of indexing.
Therefore, that tiny fraction of disclosures printed for use as exhibits, and paginated and Bates stamped, can be referenced by all parties by Bates number; between yourself and opposing counsel, native files are easily referred to by their file-level Bates like number, or other meta data like date and file type or author, and specific content.
It’s clear that native production won’t end the use of Bates numbers; neither will Bates numbers be displaced in the foreseeable future, or any time soon, as the simplicity of pinpointing material being discussed quickly by document number, page and line number is just hard to beat.
MasterFile gives you the ability to unitize native files and Bates stamp and endorse within itself. It generates PDF, TIF and native format disclosure sets automatically so you can easily and quickly respond to requests to produce in a timely manner. It tracks all productions so you can pinpoint any document in any production in two clicks. And when you do need on-page Bates stamping as the party producing documents for Court, there’s no need to print and stamp manually, nor the need to export documents to a separate program such as Acrobat for Bates stamping.
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